| With the gradual deepening of domestic market economic change and higher quantity demand of talents,talent competition becomes fiercer and employers pay more attention to the internship and practice experience.The number of students participating in practice activities is increasing.In general cases,students' internship includes the following two kinds: the first one is that students put the specialty knowledge into practice at the employer's site on the basis of concluding a labor relationship with the employer in order to master the specialty work,which is also called employment internship;the second is that students develop social practice at employer's site according to school's teaching plan for the purpose of learning instead of concluding a labor relationship,which is also called teaching internship.It happens frequently that students suffer personal accident during the period above.In the current stage,China has not promulgated the corresponding laws and regulations specifying the adjustment of students' social relationship when having internship.There are few laws and regulations that can be used by students to safeguard their rights and interests during the process.In this paper,the applicable aid system that can be used by students when suffering work injury accident during internship is studied here and the dilemma faced by the current Chinese interns when facing or suffering work injury accident is pointed out by bringing forth typical cases and both existing problem and cause of dilemma are analyzed;four aid modes that are available at present are illustrated here by describing their strengths and weaknesses;the cause of difficulties in safeguarding rights and interests and aid chaos is that students' legal status in course of internship and nature of legal relationship of internship are not clear.By illustrating the provisions of laws and regulations,different points of viewsand theories,the legal status of students in course of internship and the legal relationship with all parties are researched;finally,suggestions are proposed for establishing the system for intern work injury accident aid and internship right and interests safeguarding by focusing on safeguarding interns' work injury accident aid rights and interests.In addition to introduction,this paper includes five parts.In introduction,the necessity of using legal system aids by student interns after suffering work injury accident to safeguard their rights and interests is proposed;China's current work injury treatment for interns have been illustrated by three representative cases in Part1.Student interns' dilemmas after suffering accidents are introduced through the problems reflected by these typical cases.In Part 2,the cause why these dilemmas happen is described,including legislation unavailability: interns are not included in the scope of adjustment according to the current relevant laws and regulations and China's legislation on the interns' work injury accident aid system has not been prepared yet;dispute regarding the definition of student interns' labor identity in theoretical circle and juridical practice: According to China's current legislation and practice,student interns are not identified as laborers.Whether they have the qualification when analyzing from the perspective of laborer's qualification is highly disputable in academic and juridical circles.According to the positive opinions,interns have the qualification of laborer subject specified in labor law and satisfy the laborer requirements.In contrast,interns are still students and internship is part of their assignment according to the negative opinions which also specify that the internship is aimed to exercise their labor skills instead of getting paid so they are not real laborers actually;difficulties in finding applicable laws: The existing laws and regulations are not applicable to the safeguarding of student interns' work injury rights and interests;incomplete internship system: The dilemma of applicable laws for interns' work injury accident also leads to higher treatment difficulty.In Part 3,the aid paths that can be used by student interns at present are described:(1)Triple agreement,which essentially a commission contract.Interns can request the counterparty to bear violation liabilities according to the agreement;(2)Tort salvation,which is also a kind of most commonly seen aid means;the infringementresponsibilities will be undertaken by taking fault liability as the main doctrine of liability fixation;(3)Work injury compensation aid,which is actually the most effective aid means for protecting student interns.However,it is applicable in a few provinces only due to the inexplicit subject positioning;(4)Commercial insurance aid.The most common one is student internship liability insurance which can safeguard student interns' rights and interests better but it is promoted with insufficient efforts.In Part 4,core issues---whether student interns can be identified as laborers and the legal relationship with internship unit and school are discussed;if the student interns comply with the requirements of laborer qualification,they actually constitute labor relationship with internship units and if so,the direction for constructing work injury legislation and system for interns will become clear in future.In Part 5,the author brings forth personal ideas on resolving the dilemma of student intern work injury accident and rights and interests safeguarding.First of all,student interns should be included into the protection objects in legislation,unreasonable regulations in juridical salvation should be resolved to specify the part that is not covered by work injury or even professional compulsory social insurance,and interns' right of aid shall be ensured.The aid choice under concurrence of claims should be improved and students' legitimate internship rights and interests shall be ensured at maximum;interns' work injury guarantee system should be built,proper work injury insurance system mechanism should be prepared for them,the difficulties in recognizing wage criteria should be resolved and internship liability insurance promotion should be strengthened to make students have more guarantee choices and relieve the burdens of both schools and internship units.The student interns' supporting measures and right safeguarding ways should be increased and how to safeguard interns' internship rights and interests from government,school and internship unit and promote the harmonious and steady development of internship relationship should be demonstrated from the perspective of policies;interns should also enhance their awareness and capacity of safeguarding their rights and interests. |
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